Disparity Related to Crime History of Crack

Douglas Berman, law professor at Ohio State University, talks with Michele Norris about how the disparity in sentencing minimums between crack and powdered cocaine began. Berman says harsher penalties for crack cocaine stem from the high crime rates resulting from the crack epidemic of the mid- to late 1980s.

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MICHELE NORRIS, host:

For more now on the origins and the impact of the sentencing guidelines, we turn to Douglas Berman. He's a law professor at Ohio State University.

Welcome to the program, professor.

Professor DOUGLAS BERMAN (Law, Ohio State University): Thank you.

NORRIS: Now, remind us, how and when did these guidelines and fixed prison terms come into play?

Prof. BERMAN: Well, in the mid-1980s, there was a coalescence of voices on the right and the left, expressing concern with broad judicial discretion at sentencing. And Congress enacted the Sentencing Reform Act in 1984 that created the U.S. Sentencing Commission and tasked them with creating binding sentencing guidelines.

NORRIS: Now, this is often called the 100-to-1 disparity because a person caught with five grams of crack - the equivalent of about two sugar cubes -gets a mandatory minimum of five years in federal prison. However, it takes 500 grams of powder cocaine - more than one-pound bag of sugar, to use that same analogy - to earn the same sentence. What's been the practical effect of this disparity over the past two decades?

Prof. BERMAN: Well, the practical effect has been much longer sentences for low-level crack offenders. That's had a disproportionate impact on African-Americans. The statistics from the Sentencing Commission show quite dramatically that the vast majority of persons arrested and prosecuted in the federal system for crack offenses are African-Americans. Whereas for powder offenses, it's more mixed between Latino offenders, African-Americans and Caucasians. And the byproduct, though, of the much harsher sentences for crack is a particular disparity in the length of prison sentences being served by African-American drug offenders.

NORRIS: The goal originally was to try to decapitate some of these drug-trafficking rings to go after some of the top drug traffickers. Has that actually happened?

Prof. BERMAN: There's been some success in that regard, and you'll get dueling analyses about whether these laws have been effective in going after the kingpins. The belief is that these harsh sentences, even when they apply to low-level offenders, create leverage to get cooperation. The problem is many of them, mules and the low-level dealers, simply don't have the information to trade away. They don't really know the big kingpin source. They don't know how to get up the line of command, and so they end up serving these long sentences because they can't provide the information the government is seeking.

NORRIS: When Congress first introduced these sentencing guidelines, it was met with quite a bit enthusiasm both from politicians and the public. At this point, though, it seemed that there's widespread opposition to the sentencing disparities, and from all sides, the liberal-leaning groups, also from conservative groups. With so much grousing from all sides, why is there have been no change on this?

Prof. BERMAN: Well, there's broad consensus that the 100-to-1 ratio really does not accurately reflect the relative harms of crack versus powder. And there's a widespread understanding that this has produced the kind of racial disparity and other disparities that we've talked about. The problem is how you get to a better system. Many have suggested, well, let's increase the sentences for powder cocaine. Others have suggested, no, the sentences are harsh enough across the board. Let's lower the penalties for crack.

In addition, the Sentencing Commission initially said, let's equalize this. And Congress in 1995 rejected the Sentencing Commission's proposal. And they said, we understand your arguments that the 100-to-1 ratio is not fair, but we don't think a 1-to-1 parity makes sense, either. But no one's had the political insight to figure out a compromise that everybody could be content with.

NORRIS: The U.S. Sentencing Commission has, once again, recommended doing away with that sentencing disparity this past May. Will Congress likely follow the advice?

Prof. BERMAN: Congress may not take the Sentencing Commission's full advice and completely restructure the crack and powder sentencing along the lines the commission has recommended. But it looks as though Congress will allow to go into place a more modest proposal the commission has put forward in amending its own guidelines to reduce the severity of the 100-to-1 disparity at least in the operation of the guidelines.

NORRIS: Professor, thank you very much.

Prof. BERMAN: Thank you.

NORRIS: That was Douglas Berman, a law professor at Ohio State University.

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